Restore Flexibility to U.S.
Sentences

By Senator Paul Simon
and Dave Kopel

National Law Journal, Dec. 16, 1996, page A15

Harsh laws and severe punishments, observed
Confucius, are a sign that something is wrong with the state. But you don't need
to be a brilliant philosopher to recognize that America's prisons are in a state
of crisis.

Federal mandatory minimums have made a bad
situation worse. In large part because the rigid minimums make no distinction
among the circumstances of cases, today's sentences for non-violent crimes lack
any semblance of balance. If a man helps unload a boat of hashish just once to
pay for his wife's cancer treatments (an actual case), he is subject to the same
minimum sentence as the mastermind of the whole scheme.

As a prime example of the irrationality of
mandatory minimums, we should consider the sentencing disparity for users of
different types of cocaine. Under the drug laws, five grams of crack cocaine
draws the same mandatory minimum five-year sentence as 500 grams of powder
cocaine. No scientific or crime-policy reason justifies the enormous 100-to-1
ratio. The gaping difference is particularly troubling because it has racially
charged implications: Eighty-five percent of federal crack prisoners are
African-American, while powder cocaine offenders are more likely to be white or
Hispanic.

Furthermore, Congress appears to be in no mood
to deal with this disturbing discrepancy. In 1995, the U.S. Sentencing
Commission recommended that Congress abolish the crack/powder distinction and
bring crack sentences in line with the already-strict sentences for powder
cocaine. For the first time in history, Congress voted to reject the
commission's advice, claiming that crack is associated with higher levels of
violence.

We suggest, however, that it might be more
sensible to target the violence rather than the drug of use. As a result of
present policy, more than 20 percent of federal prisoners are low-level,
non-violent drug offenders. Various 1996 congressional bills proposing increases
in the mandatory minimum penalties for powder cocaine, methamphetamine and other
drugs continue to undermine efforts of the Sentencing Commission to maintain
rationality in the administration of justice. Chief Justice William H. Rehnquist
has noted that mandatory minimums "frustrate the careful calibration of
sentences from one end of the spectrum to the other that the guidelines were
intended to accomplish."

Expensive as prison is, it can be a bargain when
it keeps violent criminals from preying on the innocent. But loading our prisons
with non-violent offenders, often for drug violations, means that there is less
room for the more dangerous repeat criminals. The end result is that we have a
higher percentage of people in prisons than any other nation on earth--South
Africa being a distant second. And yet, although we have passed the dubious
milestone of having more than a million Americans in prison, we feel less safe
today than we formerly did.

Professionals Object

Criminal justice professionals agree that reform
is needed. A survey of America's prison wardens found that they strongly oppose
mandatory minimum sentences for drug offenders and that 65 percent of them
believe we should reduce sentences for non-violent offenders, and increase them
for violent criminals.

Like the wardens, almost all federal
judges--including Reagan and Bush appointees--oppose inflexible mandatory
sentences. The reason that we have highly-paid, experienced federal judges is to
judge.

No sensible judge would send a young person to
prison for five years without parole for a first offense involving possession of
a small quantity of drugs. Judges can make the distinction between a person who
makes a solitary mistake, and a person who directs a major criminal enterprise.

Yet, because of the congressionally imposed
mandatory minimums, judges are prevented from taking the facts of a case into
account during sentencing. Long ago, Plato wrote, "We should exhibit to the
judges . . . the outline and form of the punishment to be inflicted . . . But
when a state has good courts, and the judges are well trained and scrupulously
tested, the determination of the penalties or punishments which shall be
inflicted on the guilty may fairly and with advantage be left to them." That
wisdom still stands.

Recent reports have suggested that crime rates
have fallen, but there is no sign that the demagoguery associated with crime
issues is waning. In their eagerness to pander to the mass media, politicians
often sanction quick fixes. As the 105th Congress convenes, however,
we can only hope that it will be less quick to satisfy the immediate desire for
retribution. Long-term solutions, such as alternative sentencing for low-level
nonviolent offenders, are needed in order to reintroduce balance into our sadly
misguided sentencing policies--among which, mandatory minimums may well be the
least constructive.

Paul Simon is the outgoing senior Senator
from the State of Illinois; David B. Kopel is an
associate policy analyst with the Cato Institute.

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necessarily representing the views of the Independence Institute or as an
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